IN RE: M.R.F.-C. & E.J.F.-C.
Appellate Case No. 28683
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
September 11, 2020
2020-Ohio-4400
FROELICH, J.
Trial Court Case Nos. 2008-0113, 2008-0116; (Appeal from Common Pleas Court — Juvenile Division)
OPINION
Rendered on the 11th day of September, 2020.
MATTHEW C. SORG, Atty. Reg. No. 0062971 & EBONY D. DAVENPORT, Atty. Reg. No. 0098041, 40 North Main Street, Suite 2700, Dayton, Ohio 45423
Attorneys for Mother
Attorney for Father
FROELICH, J.
{¶ 1} Mother appeals from judgments of the Montgomery County Court of Common Pleas, Juvenile Division, which concluded that it lacked subject matter jurisdiction over the parties’ child custody cases. Mother claims that the trial court erred in concluding that it did not have exclusive continuing jurisdiction as the home state, and that it erred in failing to hold a due process hearing before declining jurisdiction. For the following reasons, the trial court‘s judgments will be affirmed.
I. Procedural History
{¶ 2} Mother and Father, who have never married, have twin sons born in January 2007. The couple separated in October or November 2007, and Father moved to Grand Rapids, Michigan, where his parents lived. In January 2008, Father filed a petition in the Montgomery County juvenile court to establish parenting time and child support. The trial court entered orders establishing visitation and child support amounts for Father.
{¶ 3} In August 2011, Mother filed a motion to terminate child support in the juvenile court. She indicated that she and Father had been working toward building a joint family home for their children and had recently purchased a house together in Grand Rapids. The court granted Mother‘s motion. The parties took no further action in the case for several years.
{¶ 4} On September 23, 2019, Father filed a motion in Montgomery County to transfer the case to Michigan. Father indicated that Mother had taken the children to Ohio several times in August and early September, and the last trip had caused the boys to miss four days of school. Father further stated that, on September 7, Mother “removed the children from the home and stated that she was taking them to Ohio with her.” Father asked that the case be transferred to Michigan, the residence of both parties and where the boys had lived most of their lives. Father further asked that any filing by Mother be stayed. The trial court denied the motion “as no case [was] pending” in this court to transfer.
{¶ 5} Father then filed a motion in the Kent County Circuit Court in Michigan, asking it to accept jurisdiction. On October 10, Mother filed a motion in Montgomery County for reallocation of parental rights and responsibilities. The magistrate in Ohio scheduled a hearing for January 7, 2020.
{¶ 6} On October 22, 2019, the Michigan court granted Father‘s motion and accepted jurisdiction over the parties’ custody matter. The Michigan court‘s order indicated that it had considered Father‘s motion to accept jurisdiction and “argument made by Plaintiff and Defendant‘s counsel on October 11, 2019.” The Michigan court further stated that it had consulted with the magistrate in the Montgomery County juvenile court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and both courts agreed that the Kent County court was the more appropriate forum due to the family‘s residing there since 2010.
{¶ 7} A week later, Mother filed a motion in the Montgomery County court, asking it to retain jurisdiction and for a hearing. Mother argued that the Ohio court had exclusive, continuing jurisdiction until the Ohio court or the court of another state determined that a parent or the children did not “presently reside” in Ohio.
{¶ 8} The magistrate denied Mother‘s motion. The magistrate found that, when Mother filed her motion to reallocate parental rights and responsibilities, neither the parties nor the children resided in Ohio within the meaning of
{¶ 9} Mother filed objections, and Father opposed the objections. The trial court succinctly summarized the parties’ arguments, stating:
* * * [Mother] asserts that because she returned to the State of Ohio with the children, and the most recent order (from 2008) was issued in Ohio, Ohio has not lost its exclusive continuing jurisdiction to modify its own order. [Mother] also argues that the Magistrate erred in his interpretation of Slaughter v. Slaughter, 2012-Ohio-3973 (10th Dist.). In conclusion, [Mother] requests the Court to grant her objections and set the matter for a hearing on her Request for Modification of Parenting Time under the exclusive, continuing jurisdiction of this Court.
* * * [Father] asserts that Michigan is the child‘s “home state” pursuant to
R.C. 3127 as the parties have fully lived in the state of Michigan for approximately 9 years, having Michigan driver‘s licenses, registering to vote in Michigan, utilizing Michigan school systems, and with Mother owning 1/2 of the family home in Michigan. Therefore, [Father] argues that Mother‘s move [to] Ohio in September 2019, a month before filing her motion, does not decide domicile or residency, and none of the parties “reside” in the state of Ohio within the meaning ofR.C. 3127.16 .
{¶ 10} On December 20, 2019, the trial court overruled Mother‘s objections. The trial court concluded that, although Ohio was the children‘s “home state” when the initial custody proceedings occurred in 2008, Ohio was no longer the children‘s home state, “as none of the parties or children have resided in this state for a period of 6 months prior to filing of Mother‘s modification action. As such, this Court no longer has exclusive jurisdiction over this matter.” The trial court noted that some Ohio appellate districts have held that a court does not lose its “continuing” jurisdiction even if it loses its “exclusive” jurisdiction. The trial court distinguished those cases, stating that the “dispositive consideration” appeared to be the lack of another state‘s court‘s attempting to exercise jurisdiction. In this case, the Michigan court agreed to accept jurisdiction, and the trial court concluded that the Michigan court could properly exercise jurisdiction and was the more appropriate forum.
{¶ 11} Finally, citing State ex rel. Seaton v. Holmes, 100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, the trial court noted that the Ohio Supreme Court had held, when interpreting the previous UCCJA and the Parental Kidnapping Prevention Act, that a party who leaves the jurisdiction, establishes residency elsewhere, and then attempts to reestablish residence
{¶ 12} Mother appeals, raising two assignments of error, which state:
- The trial court erred in finding that Ohio lacked continuing jurisdiction as the “home state.”
- The trial court erred in failing to hold a due process hearing before declining jurisdiction as required by the UCCJEA.
{¶ 13} We review de novo review the trial court‘s determination regarding the existence of subject matter jurisdiction, because such a determination is a question of law. In re A.G.B., 2d Dist. Montgomery No. 28682, 2020-Ohio-3388, ¶ 13; Baker v. Baker, 2d Dist. Montgomery No. 27850, 2018-Ohio-3065, ¶ 34.
II. Jurisdiction under UCCJEA
{¶ 14} “The purpose of the UCCJEA is to help resolve interstate custody disputes and to avoid jurisdictional competition with courts of other jurisdictions in custody matters.” Lafi v. Lafi, 2d Dist. Miami No. 2007 CA 37, 2008-Ohio-1871, ¶ 9, citing State ex rel. Morenz v. Kerr, 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 16. In Ohio, the Act is codified in
{¶ 15} The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (“UCCJA“), which was drafted in 1968 and adopted by Ohio in 1977. See Justis v. Justis, 81 Ohio St.3d 312, 314, 691 N.E.2d 264 (1998), citing former
{¶ 16} “To bolster the effectiveness of the UCCJA,” Congress passed the Parental Kidnapping Prevention Act (“PKPA“),
{¶ 17} Under the UCCJA and the PKPA, a state court that rendered an initial custody decree had “exclusive jurisdiction over the ongoing custody dispute if that state has continuing jurisdiction.” (Emphasis sic.) State ex rel. Seaton at ¶ 9, quoting Justis at syllabus. The PKPA provides that the state court that made the initial child custody or visitation determination retains jurisdiction as long as that court has jurisdiction under its state‘s laws and “such State remains the residence of the child or of any contestant.” (Emphasis added.)
{¶ 18} In State ex rel. Seaton, the Ohio Supreme Court addressed the Ohio court‘s continuing jurisdiction under the UCCJA and PKPA when a family relocated from Ohio and the father subsequently sought enforcement of a decree in Ohio, where the original divorce decree had been rendered. In that case, the Seatons resided in Ohio with their child when divorce proceedings were initiated. In April 2002, a month before the trial court issued a divorce decree, all of the Seatons relocated to Missouri, with the mother and child residing separately
{¶ 19} The Ohio Supreme Court concluded that the mother was entitled to the writ of prohibition. The court reasoned:
Ohio was the residence of both parents and the child when they agreed to terms that were subsequently incorporated into the original divorce decree. But all of them moved to Missouri. Although [Father] later moved back to Ohio, he did not thereby confer continuing jurisdiction on the Ohio court. His status as an Ohio resident did not “continue unchanged” from the issuance of the divorce decree until the present. In fact, according to [Mother‘s] uncontroverted affidavit, [Father] has expressed his intent to continue residence in Missouri and doubts the likelihood of further proceedings in Ohio.
Therefore, under the PKPA, Ohio lacks jurisdiction over [Father‘s] postdecree motions. In other words, “[i]f the party attempting to ‘continue’ jurisdiction in the original court leaves that jurisdiction, establishes residence elsewhere, and subsequently attempts to reestablish residence in the original court, then that party does not satisfy the requirement of subsection (d) that the state or district ‘remains the residence’ of that party.”
State ex rel. Seaton, 100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, at ¶ 14-15.
{¶ 20} The Seaton Court further concluded that the UCCJA did not require a different conclusion regarding the Ohio court‘s jurisdiction. It noted that, comparably to the PKPA, the UCCJA required that “a parent or person acting as parent continues to live in this state” before an Ohio court could exercise jurisdiction. (Emphasis sic.) Id. at ¶ 16, quoting former
{¶ 21} In 1997, the National Conference of Commissioners on Uniform State Laws promulgated the UCCJEA to replace the UCCJA. This change was precipitated by a lack of uniformity among states in the adoption of the UCCJA and inconsistent decisions about the UCCJA by state courts. See Rosen, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, at ¶ 20, citing Uniform Child Custody Jurisdiction and Enforcement Act, Prefatory Note (1997), 9 Uniform Laws Ann. 649, 650. See also Levy & McCarthy, A Critique of the Proposed Uniform Child Custody Jurisdiction and Enforcement Act, 15 J. Amer. Acad. of Matrimonial Lawyers 149 (1998) (“[D]ifferent interpretations of the Act have resulted in a hodgepodge of state interpretation of the UCCJA which has created confusion, often worse than before the UCCJA was enacted.“) “The most significant change[] the UCCJEA makes to the UCCJA is giving jurisdictional priority and exclusive continuing jurisdiction to the home state.” Rosen at ¶ 21.
{¶ 22}
the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the commencement of a child custody proceeding and, if a child is less than six
months old, the state in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
{¶ 23} It is undisputed that, in 2008, Ohio was the boys’ “home state” under
{¶ 24} An Ohio‘s court‘s exclusive continuing jurisdiction is governed by
Except as otherwise provided in section 3127.18 of the Revised Code [emergency jurisdiction], a court of this state that has made a child custody determination consistent with section 3127.15 or 3127.17 of the Revised Code has exclusive, continuing jurisdiction over the determination until the court or a court of another state determines that the child, the child‘s parents, and any person acting as a parent do not presently reside in this state.
(Emphasis added.) In enacting
{¶ 25} The comments to the UCCJEA discussed the purpose of Section 202:
This is a new section addressing continuing jurisdiction. Continuing jurisdiction was not specifically addressed in the UCCJA. Its absence caused considerable confusion, particularly because the PKPA, § 1738(d), requires other States to give Full Faith and Credit to custody determinations made by the original decree State pursuant to the decree State‘s continuing jurisdiction so long as that State has jurisdiction under its own law and remains the residence of the child or any contestant.
* * *
2. Continuing jurisdiction is lost when the child, the child‘s parents, and any person acting as a parent no longer reside in the original decree State. The exact language of subparagraph (a)(2) was the subject of considerable debate.2 Ultimately the Conference settled on the phrase that “a court of this State or a
court of another State determines that the child, the child‘s parents, and any person acting as a parent do not presently reside in this
State” to determine when the exclusive, continuing jurisdiction of a State ended. The phrase is meant to be identical in meaning to the language of the PKPA which provides that full faith and credit is to be given to custody determinations made by a State in the exercise of its continuing jurisdiction when that “State remains the residence of ...” The phrase is also the equivalent of the language “continues to reside” which occurs in UIFSA [Uniform Interstate Family Support Act] § 205(a)(1) to determine the exclusive, continuing jurisdiction of the State that made a support order. The phrase “remains the residence of” in the PKPA has been the subject of conflicting case law. It is the intention of this Act that paragraph (a)(2) of this section means that the named persons no longer continue to actually live within the State. Thus, unless a modification proceeding has been commenced, when the child, the parent, and all persons acting as parents physically leave the State to live elsewhere, the exclusive, continuing jurisdiction ceases.
The phrase “do not presently reside” is not used in the sense of a technical domicile. The fact that the original determination State still considers one parent a domiciliary does not prevent it from losing exclusive, continuing jurisdiction after the child, the parents, and all persons acting as parents have moved from the State.
* * *
Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the State, the
non-custodial parent returns. As subsection (b) provides, once a State has lost exclusive, continuing jurisdiction, it can modify its own determination only if it has jurisdiction under the standards of Section 201 [Initial child-custody determination]. If another State acquires exclusive continuing jurisdiction under this section, then its orders cannot be modified even if this State has once again become the home State of the child.
(Footnote added.) UCCJEA, Comment to Section 202.
{¶ 26} As stated above, the trial court concluded that, although Ohio was the children‘s “home state” when the initial custody proceedings occurred in 2008, Ohio was no longer the children‘s home state due to the family‘s relocation to Michigan and residing there as a family for nine years. The court further concluded, citing State ex rel. Seaton, 100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, that Mother did not satisfy Ohio‘s residency requirement when she attempted to reestablish residence in Ohio shortly before filing her motion.
{¶ 27} Mother claims that “the duration of the child‘s out of state residency during the pendency of a child custody action is irrelevant to jurisdictional analysis.” She bases her argument on State ex rel. M.L. v. O‘Malley, 144 Ohio St.3d 553, 2015-Ohio-4855, 45 N.E.3d 971, and C.H. v. O‘Malley, 158 Ohio St.3d 107, 2019-Ohio-4382, 140 N.E.3d 589.
{¶ 28} In State ex rel. M.L., the child was born in Ohio to unmarried parents, and the father filed an application to determine custody in Ohio. The mother was never served, however, and she moved with the child to New Jersey. The Ohio court nevertheless granted custody to the father, and in December 2011, the child was placed in the father‘s custody pursuant to the order. The order was reversed on appeal due to lack of service, but the
{¶ 29} The Supreme Court held that the Ohio court did not patently and unambiguously lack jurisdiction over the child custody proceeding. The court found that Ohio was the child‘s home state when the father filed his first action, which had not been dismissed. Because Ohio appeared to have been the home state of the child on the date of the commencement of the proceeding, the Ohio court had jurisdiction under
{¶ 30} The Ohio Supreme Court distinguished State ex rel. M.L. in C.H. v. O‘Malley. In C.H., the child was born in 2005 in Arizona and was adopted by her maternal grandmother, C.H., in 2017, also in Arizona. In June 2017, the child‘s biological mother drove him to the Ohio home of the man who claimed to be the biological father. Two months later, in August, the father filed an application to determine custody in Cuyahoga County, Ohio. He also filed a motion for emergency temporary custody, which was granted. The father did not inform the court that C.H. had adopted the child. C.H. later informed the court of the adoption order and challenged the Ohio court‘s jurisdiction. After the trial court rejected C.H.‘s jurisdictional challenge, C.H. brought an action for a writ of prohibition. On September 23, 2018, the father voluntarily dismissed without prejudice his application to determine custody, and six minutes later, he filed a new application under the same case number.
{¶ 31} Addressing C.H.‘s request for a writ of prohibition, the Ohio Supreme Court initially concluded that the Ohio court did not have home state jurisdiction when the father filed his August 2017 application. However, applying the voluntary dismissal rule under
Our decision to deny a writ of prohibition in M.L. was squarely based on the fact that the first application was never dismissed. By contrast, [father] did dismiss his first application under
Civ.R. 41(A)(1)(a) , effectively making the original filing a nullity. C.H. has cited no statutory authority for the proposition that when more than one child-custody action is filed, the commencement date of the first child-custody action continues to govern the home-state-jurisdiction analysis after that application has been voluntarily dismissed and a second application filed.
{¶ 32} Mother argues that, like in State ex rel. M.L., the child custody proceeding was initiated in 2008 in Ohio, and the Ohio court continued to have exclusive jurisdiction because no other custody motion or action was initiated prior to 2019. Mother states that the Ohio court‘s denial of Father‘s motion to transfer preserved Ohio‘s jurisdiction over the matter. Mother asserts, citing C.H., that the family‘s relocation during the pendency of the action in
{¶ 33} We disagree that State ex rel. M.L. and C.H. are dispositive of the issue before us. Significantly, both cases concerned whether the Ohio court had jurisdiction to make an initial child custody determination under
{¶ 34} We agree with Mother that home-state jurisdiction is determined when an action is “commenced,” and that the parties’ relocation to another state during the pendency of the proceeding does not eliminate that state‘s jurisdiction to resolve the pending custody matter. See C.H. at ¶ 13; Mulatu v. Girsha, 12th Dist. Clermont No. CA2011-07-051, 2011-Ohio-6226, ¶ 44. It does not follow, however, that the parties’ relocation after the child custody determination has been made is irrelevant to the court‘s exclusive continuing jurisdiction.
{¶ 35} Rather, we conclude that the trial court‘s consideration of the family‘s long-term residence in Michigan was appropriate in determining whether the trial court retained exclusive continuing jurisdiction over the cases before us. Although the language of
{¶ 36} In this case, the initial custody proceeding was commenced in Ohio in 2008. The trial court made a child custody determination, and no further action was taken by the parties between the 2011 motion to terminate child support and the 2019 motions. Mother, Father, and their sons moved to Michigan, and Mother and Father lived together and jointly raised their children in Michigan for nearly a decade. The trial court properly found that neither the parents nor the children resided in Ohio during that time and, as a result, the Montgomery County juvenile court lost its exclusive continuing jurisdiction. We need not reach a different conclusion simply because the trial court made this determination after Mother and the children returned to Ohio and Mother sought a modification of the original judgment.
{¶ 37} Moreover, the trial court did not “preserv[e] Ohio‘s jurisdiction” when it denied Father‘s motion to transfer the cases to Michigan, as Mother suggests. Rather, the trial court denied the motions because no case was pending in the court to transfer. Upon the filing of Mother‘s 2019 motion to retain jurisdiction, the trial court properly considered anew whether it had exclusive continuing jurisdiction over Mother‘s motion seeking a modification of the Ohio child custody order.
{¶ 38} Mother‘s first assignment of error is overruled.
{¶ 40}
- Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
- The length of time the child has resided outside this state;
- The distance between the court in this state and the court in the state that would assume jurisdiction;
- The relative financial circumstances of the parties;
- Any agreement of the parties as to which state should assume jurisdiction;
- The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
- The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;
- The familiarity of the court of each state with the facts and issues in the pending litigation.
{¶ 41} We note that the UCCJEA “is premised on the assumption that sister state courts will communicate with one another.” In re M.M.V., 2020 COA 94, 2020 WL 3088847, ¶ 33 (Colo. App.), citing Saavedra v. Schmidt, 96 S.W.3d 533, 547-48 (Tex. App. 2002). See
Inter-court communication facilitates an understanding between sister states regarding whether the issuing state has lost jurisdiction * * * or declined to exercise jurisdiction in favor of a more convenient forum * * *. Such communication alerts the issuing state to a potential loss of exclusive continuing jurisdiction, based on residence, before the new state assumes jurisdiction to modify the issuing state‘s child custody order. It also alerts the new state to any pending actions in the issuing state and helps to develop a factual record in the matter of jurisdiction.
Brandt v. Brandt, 2012 CO 3, 268 P.3d 406, ¶ 34.
{¶ 42} We find no fault with the trial court‘s failure to employ the analysis set forth in
{¶ 43} Mother‘s second assignment of error is overruled.
{¶ 44} The trial court‘s judgment will be affirmed.
TUCKER, P.J. and HALL, J., concur.
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Matthew C. Sorg
Ebony D. Davenport
James R. Kirkland
Hon. Helen Wallace